Opinion
No. CV05 4002561S
November 23, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#115)
This is an action brought by Seymour Ambulance Association, Inc., against its former employees, Frank Marcucio, III and June Marcucio. On June 15, 2005, the plaintiff filed a nine-count amended complaint against the defendants. Before the court is a motion to strike the second and sixth counts of the plaintiff's amended complaint by the defendant, June Marcucio. The second and sixth counts allege a cause of action for breach of fiduciary duty.
The defendant hereinafter refers only to June Marcucio.
On July 7, 2005, the defendant filed a motion to strike, together with a supporting memorandum of law. On August 16, 2005, the plaintiff filed a memorandum of law in opposition to the defendant's motion to strike. The court heard this matter on September 6, 2005.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480,498, 815 A.2d 1188 (2003). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). The court must "assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, [the court must] . . . read the allegations broadly, rather than narrowly." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). When ruling on a motion to strike, the court "must construe the complaint in the manner most favorable to the pleader." Blancato v. Feldspar Corporation, 203 Conn. 34, 36, CT Page 14491 522 A.2d 1235 (1987).
The defendant moves to strike the second and sixth counts on the ground that the allegations do not sufficiently allege a cause of action for breach of fiduciary duty. More specifically, the defendant argues that these counts should be stricken because: (1) the employer-employee relationship is not fiduciary in nature; and (2) no facts have been alleged to support a claim for breach of fiduciary duty. In response, the plaintiff argues, in reliance on Town Country Home House Service, Inc. v. Evans, 150 Conn. 314, 189 A.2d 390 (1963), that a court can find a fiduciary duty in an employer-employee relationship that is based on a duty of loyalty if sufficient facts are alleged and proven. Further, the plaintiff argues that it has alleged sufficient facts to assert a breach of fiduciary duty claim.
Under Connecticut law, "[a] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other." (Internal quotation marks omitted.) Cadle Co. v. D'Addario, 268 Conn. 441, 455, 844 A.2d 836 (2004); Konover Development Corp. v. Zeller, 228 Conn. 206, 219, 635 A.2d 798 (1994). A fiduciary relationship exists where the fiduciary is either in a "dominant position, thereby creating a relationship of dependency, or [is] under a special duty to act for the benefit of another." Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 38, 761 A.2d 1268 (2000). "The fiduciary duty comprises two prongs: a duty of care, and a duty of loyalty . . . While the duty of care requires that the . . . fiduciaries exercise their best care and judgment . . . the duty of loyalty derives from the prohibition against self-dealing that inheres in the fiduciary relationship." (Internal quotation marks omitted.) Matrix Investment Corp. v. Ward, Superior Court, judicial district of New London, Docket No. 567613 (September 16, 2004, Hurley, JTR) ( 37 Conn. L. Rptr. 896, 897); Gurski v. Rosenblun Filan, LLC, Superior Court, Docket No. CV 00 0179063 (February 23, 2001, D'Andrea, J.) ( 28 Conn. L. Rptr. 717, 718).
In the second count, the plaintiff alleges that the defendant was a paid employee of the plaintiff for the purpose of rendering bookkeeping and training services. The plaintiff also alleges that the defendant owed a fiduciary duty to the plaintiff and a duty to honestly perform the services required of her position. Between 2001 and 2004, the defendant Frank Marcucio, who was the defendant's husband, authorized the defendant to make payments from the plaintiff's funds to Accountax, LLC, for $100,000 for accounting/bookkeeping services. The defendants were the only individuals with an ownership interest in Accountax, LLC. During those years, Accountax, LLC, "either rendered no services to the plaintiff or, if it did render accounting/bookkeeping services to the plaintiff, did so in a grossly incompetent and/or negligent manner detrimental to the plaintiff . . ." In addition, the plaintiff alleges that the defendant knowingly and intentionally participated in self-dealing to the plaintiff's detriment. Further, as a result of the defendant's participation in self-dealing and breach of duty, the plaintiff suffered a financial loss of funds.
In the sixth count, the plaintiff alleges that the defendant participated in the use of the plaintiff's credit cards for her own or for her family's personal expenses, including but not limited to, personal and family trips, personal jewelry, computer and electronic equipment, and personal household supplies and materials. The plaintiff further alleges that the defendant breached her duty to the plaintiff by participating in the use of the plaintiff's credit cards for improper and personal charges thereby causing the plaintiff to suffer a financial loss of funds.
In Alaimo v. Royer, 188 Conn. 36, 41, 448 A.2d 207 (1982), the Connecticut Supreme Court "refused to define a fiduciary relationship in precise detail and in such a manner as to exclude new situations, choosing instead to leave the bars down for situations in which there is a justifiable trust confided on one side and a resulting superiority and influence on the other." (Internal quotation marks omitted.) "Consequently, the question of' whether a fiduciary duty exists in the present action is a question of fact to be determined by the test set forth in Alaimo [v. Royer]." (Emphasis added; internal quotation marks omitted.) Esposito v. Connecticut College, Superior Court, judicial district of New London, Docket No. 543055 (February 10, 1999, Mihalakos, J.); see also Chmelcki v. Decorative Screen Printers, Inc., Superior Court, judicial district of New London, Docket No. 532041 (June 19, 1995, Hurley, J.) (whether fiduciary relationship exists on basis of employer-employee relationship is a question of fact). "The existence of a fiduciary duty is largely a factual determination and the extent of the duty and the resulting obligations may vary according to the nature of the relationship: the obligations do not arise as a result of labeling, but rather by analysis of each case." Hoffnagle v. Henderson, Superior Court, judicial district of Hartford, Docket No. CV 020813972 (April 17, 2003, Beach, J.); see also Konover Development Corp. v. Zeller, supra, 228 Conn. 222-23.
Accordingly, "[i]t is inappropriate to decide a question of fact on a motion to strike." Esposito v. Connecticut College, supra, Superior Court. Because a question of fact is not properly decided on a motion to strike, the motion to strike is denied. Moreover, the plaintiff has alleged sufficient facts to set forth a cause of action for breach of fiduciary duty.
For the foregoing reasons, the defendant's motion to strike the second and sixth counts of the plaintiff's amended complaint is denied.